The Wasser Agency

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Employment investigations Miami Beach South Beach

What is an investigation? Employment investigations.

Investigations are a fact-finding exercise to collect all the relevant information on a matter. Properly conducted investigations can enable an employer to fully consider the matter and then make an informed decision on it. Making a decision without completing reasonable investigations can make any subsequent decisions or actions unfair, and leave an employer vulnerable to legal action.

Employment investigations are one of the toughest responsibilities in human resources. There’s an expectation that the matter will be handled in the strictest confidence. And when we do that, sometimes we’re criticized for not keeping people informed. That’s what appears to be happening in this situation.

Sooner or later, every employer will face the need to investigate one or more of its employees. More and more employers are recognizing what an important tool a workplace investigation can be in discovering problems and preventing their reoccurrence. This paper is a brief survey of the most important legal issues for employers to know about before undertaking any investigation of employees.

How Does the Need for an Investigation Arise? Employment investigations.

Many different problems can lead an employer to start an investigation, and not every investigation necessarily fits the popular profile of interrogations, witnesses under harsh lights, and long, drawn-out employment detective work. Here are some common reasons why companies investigate employees or situations:

  1. attitude problems. Employment.
  2. substance abuse. Employment.
  3. discrimination complaints. Employment.
  4. harassment complaints. Employment.
  5. threats against others. Employment.
  6. vandalism and other sabotage. Employment.
  7. violations of employment rules. Employment.
  8. safety problems. Employment.
  9. workplace theft. Employment.

Naturally, each type of problem demands its own methods of investigation. However, certain common threads run through each type of investigation situation. The employment investigator must be knowledgeable about state and federal employment laws; must uphold the privacy rights of employees and others; must conduct a thorough investigation, but without letting it drag on too long; must be objective; and must keep his or her mind on the ultimate goal of any investigation, i.e., discovering the underlying reasons for the problem so that management can take corrective action. In essence, investigations are just a tool for management to use in analyzing the reasons for problems or gathering data to make management decisions.

The role of an investigator. Employment investigations.

The role of an investigator is to be fair and objective so that they can establish the essential facts of the matter and reach a conclusion on what did or did not happen. An investigator should do this by looking for evidence that supports the allegation and evidence that contradicts it. In potential disciplinary matters, it is not an investigator’s role to prove the guilt of any party but to investigate if there is a case to answer.

STEP 1: Organizational preparation. Employment investigations.

  • Decide if an employment investigation is necessary.
  • Establish terms of reference, the rules that the investigations will follow, including precisely what needs to be investigated.
  • Choose an appropriate Employment investigator.

STEP 2: An investigator’s preparation. Employment investigations.

  • Draft an Employment investigations plan
  • Identify who might need to be called to an investigations meeting
  • Identify what evidence might need to be gathered – and how to get it
  • Contact parties involved in the matter

STEP 3: Handling an investigations meeting. Employment investigations.

  • Establish who can accompany employees at the meeting
  • Plan what questions need to be asked
  • Interview the parties involved and any relevant witnesses
  • Handle reluctant witnesses or refusals to meet appropriately

STEP 4: Gathering evidence. Employment investigations.

  • Arrange and agree on witness statements
  • Collect any relevant written records and documents e.g. timesheets
  • Collect any relevant and appropriate physical evidence e.g. CCTV

STEP 5: Writing an investigations report. Employment investigations.

  • Plan the structure of the report – remember there is a free Acas template available to use or adapt
  • Report what is likely to have happened – the balance of probabilities
  • Make a recommendation where requested

STEP 6: After an investigation is completed. Employment investigations.

  • Submit the report and conclude the investigator role
  • Retain the report for an appropriate period of time
  • Ensure any recommendations unrelated to the matter are considered

Step 7: Organizational preparation. Employment investigations.

Deciding if an investigation is necessary

Incidents and issues will arise in any workplace and ensure that they are dealt with fairly and consistently may mean that they need to be investigated.

In the first instance, an employer should consider whether a quiet word or informal action may be all that is required to resolve a matter. Most problems that arise can be settled quickly and without undue process.

Where informal resolution is not practical or possible there are a number of considerations that an employer should bear in mind when deciding if an investigation is necessary.

Considerations before making a decision. Employment investigations.

Do any policies or procedures require an investigation?

The policies and procedures of an organization may obligate them to conduct formal investigations on the matter under consideration.

Does the matter warrant further action?

If an employer is not obligated to investigate the matter, whether one is necessary will often come down to the seriousness of the matter and what type of action may be warranted.

If an investigation is necessary, then an employer should act promptly. The unnecessary delay may cause memories to fade or give the perception of an unfair process. Importantly, an informal resolution of the matter should still be considered as an option at any stage of the process. What is to be investigated? When instigating investigations, an employer should decide what the precise purpose and scope of the investigations will be. Terms of reference should be created that clearly explain what the investigator’s role and responsibilities are for these investigations. The terms of reference should spell out:

  • what the investigations is required to examine
  • whether a recommendation is required
  • how their findings should be presented. For example, an investigator will often be required to present their findings in some form of investigations report
  • who the findings should be reported to and who to contact for further direction if unexpected issues arise or advice is needed. This might be HR or a similar experienced and informed source

How long may investigations take? Employment investigations.

An employer should consult their policies and procedures to see if they contain suggested or required timescales for the investigations to follow. If no timescale is specified, an employer should provide a provisional timeframe within which the investigations should be completed. A complicated matter may take several weeks to conduct properly. A relatively simple matter may only require a few investigations for it to be reasonable.

Providing a provisional time-frame is helpful but an investigator should not be restricted by a set completion date. An investigator may find that the time-frame needs to be modified to enable them to investigate the matter properly. While investigations should be completed as quickly as is practical, it also needs to be sufficiently thorough to be fair and reasonable. This is particularly important if the matter could result in disciplinary action or legal proceedings. Any delay to the investigation’s conclusion should be explained to those involved and included in the report.

Deciding who will deal with the matter In a potential disciplinary matter Where possible, a different appropriate person should handle each required stage of the matter. Usually, roles needed for a disciplinary matter will be:

  1. An investigator to gather the facts of the matter
  2. A decision maker, in case the facts warrant further action, such as a disciplinary hearing. Where the option is available, this should usually be a member of staff that is more senior than the investigator
  3. An appeal hearer, in case an appeal is raised against a disciplinary. Where the option is available, this should be a more senior member of staff to the decision maker. Sometimes, especially in smaller organizations, it may have to be someone at the same level as the decision maker or even the same person.

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